Before the passing of this act, it had been determined, on a question of settlement, that the rated inhabitants of either parish could not be compelled to answer against their own parish, because they are in reality the parties to the proceeding; (1) and, for the same reason, the declarations of a rated inhabitant were adjudged to be admissible against his parish. (2) Rated Inhabi taut. Entitled to Rewards. Thirdly, persons entitled to rewards on the conviction of offenders, (whether the rewards are given by act of parliament, by proclamation, or by private persons,) and persons entitled to the restitution of their property on the conviction of a thief, (3) are competent to give evidence. (4) Fourthly, the admitting of the evidence of agents, servants, and Agents, serfactors, has been considered an exception to the general rule; "for factors. the sake of trade and the common usage of business." (5) And this was, properly speaking, an exception formerly, when interest in the question was taken as a test of competency. But now, as the true criterion is, whether a witness is interested in the event of the cause, the evidence of agents, servants, and factors, for the purpose of proving contracts made by them on behalf of their principals, would be admitted, under the general rule, and not by way of exception. (q) vants, and A factor may prove a sale, though he is to receive a poundage Factor. on its amount, (6) or what he has bargained for beyond a stated, sum. (7) (r) And every person who makes a contract for another, is an agent within the meaning of this rule. (8) It is the com- Servant. mon practice to admit servants and carriers, to prove the payment or receipt of money, or the delivery of goods on behalf of their master or principal. (9) Thus, if money has been overpaid by a (1) R. v. Woburn, 10 East, 403. See ante, p. 91. (2) R. v. Whitley Lower, 1 Maule, Selw. 636. In this case the person, whose declarations were offered, was not called as a witness, nor had he refused to give evidence. (6) Dixon v. Cooper, 3 Wils. 40. 1 (7) Benjamin v. Porteus, 2 H. Bl. (9) By Holt C. J. in Theobald v. (3) By st. 21 H. 8, c 11. (4) Rudd's case, Leach, Cr. C. 157. 158. lb. 353, n. Hawk. P. C. b. 2, c. 46, s. 135. (5) Fortesc. 247. Bull. N. P. 259. 48. By Eyre C. J. 2 H. Bl. 591. (g) See Note 241, p. 254. (r) See Note 242, p. 255. VOL. I. 17 Ste ward. Agents when not competent. Workmen. Servant when not competent. servant, or paid by mistake, he is a competent witness, in an action to recover it back. (1) (s) So, where the question was on the custom of a manor, whether a fine was due to the lord during his minority on the tenant's admission, the standard of the manor was allowed to give evidence for the lord, though it was objected to him, that he would be entitled to a fee on admission, which he would lose, if the tenant were not admitted. (2) But though agents and brokers are competent to prove a sale or contract, they are not competent to prove the contract properly executed, in an action against the principal for their misconduct or negligence. Thus, in an action against the defendant for purchasing goods of an inferior quality, Lord Ch. J. Gibbs rejected, as an incompetent witness, the broker of the defendant, who was called to prove that he had purchased goods of the best quality. (3) And where a person has entered into a contract for the purchase of goods in his own name, it has been held that he is not a competent witness, in an action for goods sold and delivered, to prove that he purchased them as the agent for the defendant. (4) In an action of trespass, where the question is, on a plea of licence, whether the defendant has exceeded what he had the plaintiff's permission to be, the defendant's workmen, employed to do the work, are competent witnesses on his behalf; for though the plaintiff may have a verdict, yet it does not follow that the workmen would be liable, and the verdict would certainly not be evidence against them. (5) (t) Where the act of the servant has been out of the ordinary course of his employment, and a mere breach of duty, the principle does not apply; and it has, therefore been held, that in such a case the servant is not a witness for his master without a release. Thus, in an action to recover back money, which had been intrusted to the plaintiff's servant for a special purpose and paid by the servant in illegal insurances, he was considered incompetent without a release. (1) And in an action against the defendant for the negligence of his servant, the servant is not competent to disprove the fact of his negligence: (2) for since the verdict might be given in evidence in an action by the defendant against the witness, as to the quantum of damages, the servant is directly interested to defeat the action. (u) SECT. VIII. Of the Means by which the Competency of an interested Witness be restored. may THE last question that remains to be considered, on this part of our subject, relates to the regular mode of making the objection (v) to the competency of a witness, and the means of restoring his competency. when taken. The rule formerly was, that the objection ought to be made on Objection the voire dire, and, if made after the examination in chief, it would not have the effect of excluding the witness; though, even then, his incompetency might be shown in another stage of the proceeding, for the purpose of impeaching the witness' credit. (3) But for the convenience of the court, and because the incompetency may not at first be suspected, a greater latitude has been since allowed. And now, if it is discovered during any part of the trial, that a witness is interested, his evidence will be struck out. (4) (w) The party, against whom a witness is called, may examine him How raised. respecting his interest on the voire dire, (x) or may call another witness, and produce other evidence, in support of the objection. (y) The old rule is said to have been, (5) that, if the witness C. 73. Miller v. Fal (3) See Ld. Lovat's case, 9 St. Tr. 646. fol. ed. S. C. 18 Howell's St. (1) Corking v. Jarrard, 1 Campb. 4 T. R. 589. Bird v. Thompson, 1 37. In Clarke v. Shee, Cowp. 199, Esp. N. P. C. 339. which was a similar case, a release coner, 1 Campb. 251. 6 Esp. N. P. was given. See anonymous case, 1 Salk. 289; Bull. N. P. 39, 289, S. C.; and anonymous case, Bull. N. P. 280. These were actions by a master to recover property embezzled by his servant, and the servant was admitted a witness to prove delivery to the defendant; but it does not appear whether the plaintiff gave a release. (2) Green v. New River Company, Tr. 596. (4) Turner v. Pearce, 1 T. R. 720. Perigal v. Nicholson, 1 Wightwick, 64. Howell v. Lock, 2 Campb. 14. (5) By Lord Hardwicke, in Lord Lovat's case, 9 St. Tr. 647, fol. ed. S. C. 18 Howell's St. Tr. 596. (u) See Note 245, p. 256. (v) See Note 246, p. 256. (w) See Note 247, p. 256. (*) See Note 248, p. 257. (y) See Note 249, p. 958. Examination on voire dire. Objection re were examined by the opposite party as to the fact of the objection, and denied it upon his oath, the party would not be at liberty to call afterwards another witness to prove it, in order to repel him from giving evidence, unless the other side acquiesced. (z) But the modern and more convenient practice seems to be, that if the fact of interest is satisfactorily proved, the witness will be incompetent, though he may have ventured to deny it on the voire dire. (a) A witness may be examined, on the voire dire, as to the contents of a will or deed, or other written instrument, under which he is supposed to acquire an interest in the subject matter of the suit. (b) The general rule, which requires a notice to be given for the production of a written instrument, before a witness can be allowed to speak to its contents, does not apply to such a case; for the opposite party may possibly be ignorant of its existence, and cannot be supposed to know that a particular witness would be called on the other side. (c) But if the witness himself produces the very instrument, on which the objection to his competency rests, the instrument ought to be read, as the best proof of the witness' situation. (1) When the objection arises from a witness' answer on the voire moved on v. d. dire, it may be likewise removed on the voire dire. (d) Thus, where, in an action brought by a chartered company, a witness for the plaintiffs admitted, on the voire dire, that he had been a freeman of the company, but added that he was then disfranchised, Lord Kenyon ruled, that it was not necessary to prove the disfrancisement by the regular entry in the company's books, and that the witness was competent. (2) And in a later case, on a question of settlement, where the point for the consideration of the Court of King's Bench was, whether a witness produced by the appellants could be examined, after having admitted in his examination on the voire dire, that he was the occupier of a cottage in the appellant township, but that he had never been charged with or paid any public rate or tax in that township, the court held, that there was no ground for (1) Butler v. Carver, 2 Starkie, N. P. C. 434. (2) Butchers' Company v. Jones, 1 (z) See Note 250, p. 258. Esp. N. P. C. 162. Botham v. Swingler, Peake, N. P. C. 218, 1 Esp. N. P. C. 164, S. C. (a) See Note 251, p. 259. (b) See Note 252, p. 260. objecting to his testimony, and that it was not necessary for the appellants to produce the rate, in order to negative the rating. (1) In another case, where a witness was objected to as next of kin, in an action by an administrator, but on re-examination answered, that he had released all his interest, this was held by Lord Ellenborough to remove the objection. (2) (d) other evidence. The objection, in the cases last cited, arose from the examina- Removed by tion on the voire dire, and was removed also on the voire dire. But when the party who calls a witness, attempts to remove the objection by other independent proof, and not on the voire dire, he will then be subject to all the general rules of evidence; and the best proof will be requisite, according to the nature of the case. Thus, if another witness is called, to prove that the witness, supposed to be interested, has been released; he cannot be allowed to speak of the contents of the release, but the release itself, if in existence, ought to be produced. (3) The same rule has been laid down by Lord Kenyon in another nisi prius case. (4) (e) Whatever interest a witness may have had, if he is divested of it Release. by release (ƒ) or payment (g) or any other means, (h) when he is ready to be sworn, (i) there is no objection to his competency. Thus, it is said "to have been solemnly agreed by the judges, that where a person had a legacy given him and did release it, he was a good witness to prove the will."` (5) * ( j) (1) R. v. Gisburn, 15 East, 5. (2) Ingram v. Dade, Lond. Sitt. after Mich. T. 1817. (3) Corking v. Jarrard, 1 Campb. 37. (4) Botham v. Swingler, 1 Esp. N. P. C. 164. (5) Vin. Ab. tit. Evidence, 14, n. 53, cited by Lord Mansfield, 1 Burr. 423. * Lord Chancellor Hardwicke established the will of Lord Ailesbury on similar proof, in the year 1748. (See 1 Burr. 427.) And in Wyndham v. Chetwynd (1 Burr. 414,) where the subscribing witnesses were creditors of the testator, as their debts had been paid, they were admitted to prove the will. So in Doe dem. Hindson v. Kersey, (4 Burn Ec. Law, 97,) three of the judges were of opinion, that a subscribing witness was restored to his competency, if all his interest had been released or extinguished at the time of the examination. Lee C. J. in Anstey v. Dowsing (2 Str. 1253,) and Ld. Camden C. J., in Doe, on the demise of Hindson v. Kersey, were of opinion, that if a subscribing witness was interested at the time of attestation, nothing ex post facto could give effect to his attestation. In the former of these cases, Justice Dennison differed from Lee C. J. on this point. (See 1 Burr. 427, 428.) (d) See Note 255, p. 260. (e) See Note 256, p. 260. (g) See Note 258, p. 264. (h) See Note 259, p. 264. (j) See Note 261, p. 266. (f) See Note 257, p. 261. |